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June 2, 2004.

CHARLES T. PASCIUTI, Petitioner, -against- DARYL DREW, in his capacity as Warden of the Federal Correctional Institution at Ray Brook, New York, Respondent

The opinion of the court was delivered by: LAWRENCE KAHN, District Judge



Charles Pasciuti ("Pasciuti" or "Petitioner") is serving a 180 month sentence as an inmate at the Federal Correctional Institution at Ray Brook, New York for his role in a conspiracy to distribute a controlled substance. Petitioner has been incarcerated since October 3, 1991, and his 15 year sentence would expire on October 1, 2006. Applying credit for good conduct time ("GCT") to Petitioner's sentence, the Bureau of Prisons ("BOP") has set his release date as October 26, 2004.

  Pasciuti alleges that the BOP has incorrectly calculated the amount of GCT to which he is entitled under 18 U.S.C. § 3624(b). Pursuant to 28 U.S.C. § 2241, and after exhausting his administrative remedies, Pasciuti filed the instant habeas petition, asking the Court to alter BOP's GCT calculation and order his release date to be set at July 11, 2004. In addition to his filing a habeas petition, Petitioner has also filed a motion for a preliminary injunction, which requested similar relief, namely, his release from Ray Brook on July 11, 2004.*fn1


 (a) 18 U.S.C. § 3624(b)

  BOP's calculation of GCT is based upon the Congressional mandate in 18 U.S.C. § 3624(b) which reads*fn2:
(b) Credit toward service of sentence for satisfactory behavior.
(1) . . . [A] prisoner who is serving a term of imprisonment of more than 1 year . . . shall receive credit toward the service of his sentence, beyond the time served, of up to 54 days at the end of each year of his term of imprisonment, beginning at the end of the first year of the term, unless [BOP] determines that, during that year, he has satisfactorily complied with . . . institutional regulations. . . . If the Bureau determines that, during that year, the prisoner has not satisfactorily complied with such institutional regulations, he shall receive no such credit toward service of his sentence or shall receive such lesser credit as [BOP] determines to be appropriate. [BOP]'s determination shall be made within fifteen days after the end of each year of the sentence. Such credit toward service of sentence vests at the time it is received. Credit that has vested may not later be withdrawn, and credit that has not been earned may not later be granted. Credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.
  The parties construe this statute differently, which forms the basis of the instant petition. Petitioner contends that by using the phrase "term of imprisonment", a legal term of art, in § 3624(b), Congress intended to allot 54 days of GCT for each year of an inmate's sentence, not merely the time he has served. Therefore, Petitioner asserts that his total GCT is calculated by multiplying his total sentence of 15 years by 54, the number of days GCT awarded under the statute for each "year of the prisoner's term of imprisonment," which results in 810 days of GCT and his release on July 11, 2004.

  BOP calculates Petitioner's GCT differently. At the end of each year of imprisonment, for his good conduct during that year of incarceration, BOP has awarded Petitioner 54 days of GCT. Therefore, as of October 1, 2004 he will have vested 648 days CGT — 54 days for each of 12 years he has served.*fn3 After applying the credit of 648 GCT days to his 15 year sentence, on October 1, 2004, Petitioner will have less than one year remaining on his sentence. Petitioner will then be awarded GCT of 3 days, a prorated amount of GCT for the duration of his sentence which is less than a full year.

  One district judge has explained the dispute as follows:
[T]he pivotal clause in § 3624(b) is the one stating than an inmate may earn up to 54 days of good conduct time "at the end of each year of the prisoner's term of imprisonment." That clause raised the question whether the phrase "term of imprisonment" means "sentenced [sic] imposed" or "time served." If "term of imprisonment" refers to the sentence, an inmate's maximum potential good conduct time could be calculated by multiplying 54 days by the number of years in the sentence. . . . However, if a term of imprisonment is defined by the inmate's actual time served, the number of good time credits that could be earned would be reduced and a more complicated calculation would be required because an inmate that earns good time will not actually serve his full sentence.
White v. Scibana. 2004 U.S. Dist. LEXIS 7257, * 6-7 (W.D.Wis. April 23, 2004).
  Petitioner contends that allotting him 54 days for each year served, as opposed to each year of his imprisonment to which he was sentenced, has resulted in GCT of only 47 days per year, in violation of § 3624(b).*fn4 Pasciuti asks this Court to hold that BOP's decision, that he be granted only 47 days of GCT, violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 551-559, because BOP did not merely interpret the statute, but rather made a unilateral "legislative" decision, which it cannot do.

  Petitioner also contends that, even if BOP's determination did not violate the APA, the calculation method, published as BOP's Sentence Computation Manual and as BOP Program Statement 5880.28, is contrary to the clear and unambiguous intent of Congress expressed in § 3624(b), which measures GCT against the "term of imprisonment" and not the "time served."

 (b) Administrative Procedure Act

  Petitioner first alleges that the decision to award only 47 days GCT amounted to a legislative determination, rather than merely an interpretative one, and that as such, it must be subjected to the APA's notice and comment procedure. Because the BOP calculation formula did not pass through this procedure, Petitioner asks this Court to set it aside.

  (1) Legislative and Interpretive Rules

  A rule or decision which amounts to a legislative determination must be submitted to the APA's notice and comment procedural requirements. 5 U.S.C. § 553. However, an agency's interpretive decision is exempt from these procedures. 5 U.S.C. § 553(b)(A). Courts have had to delineate between "interpretive" and "legislative" rules, because the APA does not. See, e.g., Sweet v. Sheahan, 235 F.3d 80, 90 (2d Cir. 2000). The Second Circuit has stated "that legislative rules are those that create new law, right, or duties, in what amounts to a legislative act." N.Y. State Elec. & Gas. Corp. v. Saranac Power Partners L.P., 267 F.3d 128, 131 (2d Cir. 2000) (internal ...

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